Friday, February 29, 2008

Deconstruction in Law

Just a side note to our thread on textual deconstruction and the Grammatico-Historical method of interpretation...

Modern analysts worry that the system of checks and balances established by the U.S. Constitution has been eroded, and specifically that the judicial branch has usurped power meant to be wielded by the legislative branch. Those who see it this way trace the problem back to Oliver Wendell Holmes, Jr. a Supreme Court Justice from 1902 to 1932. Though it was much later that postmodernism was to become a formal system, Holmes was a moral relativist. But more importantly, he was the first person (in a position of such influence) to apply a postmodern approach to interpreting the Constitution.

Up until his tenure, the Grammatico-Historical method was what was used to interpret this most important legal document. That is, judges attempted to discover what the framers of the Constitution meant when they wrote it. But Holmes thought it would be more practical to ignore the authors' intent and to reinterpret it in light of his own days' problems and beliefs. He brought to legal interpretation a subjectivism that hadn't been seen before, and one that continues to change the legal landscape.

Almost no one would deny that the judicial branch now wields more power than ever since the Constitution went into effect, or that Holmes' tenure on the Supreme Court was instrumental in getting us to that state. There is perhaps more dispute about whether this is a bad or a good state of affairs. My point here, however, is simply this.. like so much of postmodern thought, this approach to textual criticism is illogical, being based ultimately on claims that are self-referentially absurd.